Foes: Lawsuits likely if medical pot ban approved by voters

Mesa County and the city of Grand Junction may be the target of lawsuits from Front Range attorneys if either entity places a medical-marijuana-center ban on the Nov. 2 ballot and voters approve it.

Both governing bodies decided last week to hold a place on this fall’s ballot in case either decides to ask a question about medical marijuana. Neither has committed to ballot language or asking a question at all.

Brian Vicente, a lawyer with Sensible Colorado, a Denver-based nonprofit medical-marijuana-advocacy group, said the organization successfully has sued the state of Colorado on medical marijuana issues, and it is ready to take lawsuits to the local level.

“Any governing body that looks to ban dispensaries may face some costly litigation,” Vicente said.

Tae Darnell, an attorney with the law firm of Darnell & Gottlieb in Denver, said his firm is gearing up to announce a lawsuit against a Front Range municipality that approves a ban.

“You can’t ban things you don’t like if they’re in the Constitution,” Darnell said. “We’re prepared to take this across the state if we have to.”

Darnell said he is not sure if taking the issue across the state would mean one lawsuit against many municipalities or a series of individual suits. Grand Junction City Attorney John Shaver said the differences among the questions municipalities may ask may make one group lawsuit difficult to execute.

“They’re going to have a tough hill to climb to make any generalized claim that bans are unconstitutional,” Shaver said.

Shaver said he’s not surprised by the list of potential lawsuit topics he has heard about, given the newness and complexity of the legislation regarding medical marijuana centers. Shaver said if the Grand Junction City Council approved a ballot question and a lawsuit appeared, he would advise the council whether to drop the question based on what the lawsuit alleged.

“If it has merit, I’ll tell the city council that. If it doesn’t have merit, I’m equally going to tell them that,” he said.

But with just a ballot placeholder so far accomplished, Shaver said a lawsuit is something to tackle much later in the process.

“The fact they may be threatening to litigate doesn’t bother me because we’re on step four or five of this, and that (a lawsuit) is on step 20 or so,” Shaver said.

Mesa County Attorney Lyle Dechant said he heard rumors of a lawsuit, but he is not sure what form it would take. Dechant said he’s not sure a lawsuit would have legs to stand on if it claims it’s unconstitutional to ban medical-marijuana centers, which House Bill 1284 allows local government entities to do or have voters approve. The bill does not allow cities or counties to outright ban medical marijuana, which could be provided by caregivers alone if centers were banned.

“I don’t think there’s a constitutional right on behalf of medical marijuana center owners to operate,” Dechant said.

Darnell said the argument that House Bill 1284 protects the right of caregivers is “a viable argument.”

But he said the bill is mutually exclusive from the constitutional amendment that allows patients to use marijuana for medicinal purposes.

“In the end, the constitutional protection is what will drive all of this,” Darnell said. “I have a suspicion many of these will pass and be won on our side.”

Vicente said he’s not sure why cities and counties would want to ban medical marijuana centers, which charge local sales tax on products, during tough economic times.

“I don’t think this is the time to shut down these tax-producing entities, especially if it hurts patients,” he said.


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